As every CIO knows, today all business is digital business. From the corner mom and pop bodega using Square to process credit cards up to Cisco Systems global network of devices supporting Zetabytes of data over an increasing number of devices.

What began as largely static website e-commerce at the turn of the millennium is now every day operations across multiple devices and the many different brands of platform and content delivery network. In case you missed it, two recent cases will have a wide impact regardless of industry period

Law Enforcement Access To Cell Phone Location Data Requires Warrant

In the case of Carpenter v. United States, the Supreme Court ruled that law enforcement must obtain a warrant to have access to location and other data contained on a suspect’s cell phone. In case you’re not familiar with the case, the facts in the Carpenter case are worth mentioning. In 2011, the government, conducting a criminal investigation in Detroit, obtained months’ worth of time-stamped records known as cell-site location information (CSLI) for suspects. Wireless carriers produced CSLI for petitioner Timothy Carpenter’s phone, and the Government was able to obtain 12,898 location points cataloging Carpenter’s movements over 127 days—an average of 101 data points per day. Carpenter moved to suppress the data, arguing that the Government’s seizure of the records without obtaining a warrant supported by probable cause violated the Fourth Amendment. The District Court denied the motion, and prosecutors used the records at trial. Carpenter was convicted, based in part on the cell-site records, and he appealed. holding that the government’s acquisition of historic cell-site location information (HCSLI) – at least to the extent it includes 7 days or more of cell-site records – was a search and thereby required a warrant.

In reversing the conviction, a majority of the Court has recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements and a warrant is required only in the rare case where the suspect has a legitimate privacy interest in records held by a third party. The Court downplayed the significance of its ruling, calling its decision “a narrow one” that “does not express views on “real-time CSLI” or question the application to … a range of other information-gathering tools, such as security cameras.”

What this means for business. While pundits are wisely praising the decision as a victory for privacy, I for one, do not believe it applies that broadly. Even so, there is a tangible benefit for corporate counsel at technology companies, especially those that maintain location information about their customers. Lawyers and compliance pros will feel some relief knowing that they do not have to scramble, prevaricate or litigate with law enforcement when a company receives a subpoena or other demand for location data without a warrant attached.

For additional views on this decision, please see an article from the International Association of Privacy Professionals here, and another from the Electronic Frontier Foundation here.

States Can Now Require That Internet Retailers Collect Sales Tax

The other notable decision to come down from the Supreme Court involves the long-simmering issue of state taxation on internet sales.

The decision, in South Dakota v. Wayfair Inc., was a victory for brick-and-mortar businesses that have long complained they are put at a disadvantage by having to charge sales taxes while many online competitors do not. And it was also a victory for states that have said that they are missing out on tens of billions of dollars in annual revenue.

The South Dakota Legislature enacted a law requiring out-of-state sellers to collect and remit sales tax “as if the seller had a physical presence in the State” to address the erosion of its sales tax base causing a corresponding loss of critical funding for state and local services (“Act”). The Act covers only sellers that, on an annual basis, deliver more than $100,000 of goods or services into the State or engage in 200 or more separate transactions for the delivery of goods or services into the State. Top online retailers with no employees or real estate in South Dakota who met the Act’s minimum sales or transactions requirement, but do not collect the State’s sales tax opposed the Act. South Dakota filed suit in state court, seeking a declaration that the Act’s requirements are valid and applicable to respondents and an injunction requiring respondents to register for licenses to collect and remit the sales tax. At trial and on appeal, courts held that the Act is unconstitutional.

The ruling effectively overturned a system that it created. In 1992, the Supreme Court held that the Constitution bars states from requiring businesses to collect sales tax unless they have a substantial connection to the state. That case was Quill Corporation v. North Dakota. The Quill decision helped pave the way for the growth of online retail by letting companies sell nationwide without navigating the complex patchwork of state and local tax codes.

South Dakota’s attorney general, called the ruling “a big win for South Dakota and Main Streets across America.” The case should benefit both rural businesses where local businesses have been hit hard by competition from online retailers and municipal coffers as well, because in some states local sales taxes are collected at the state level. Owners of brick-and-mortar stores like the decision as a means of leveling the playing field because they feel they often missed out on sales of big-ticket items since sales tax could have had an amplified effect on the price. For consumers, this could mean paying more for products bought online. Although most have a “use tax” that works like a state sales tax for online purchases, few if any consumers actually pay it.

Since the beginning of my practice in 1999, I suggested businesses take a state-by-state approach when it comes to issues like sales tax, since it can vary widely by jurisdiction. No business is entirely virtual. All businesses will need to examine their ecommerce strategy to see whether and to what extent this case affects the business model.

In today’s world, business is no longer about simply having an online presence. Digital business is transactional and social across platforms and networks across thew globe. The previous model of one-to-one transactional business relationships has evolved to one that is reciprocal, collaborative and highly interactive.

This new level of engagement is not without risks. As businesses expand into new online areas for marketing and commerce, businesses should be aware of a myriad of laws and risk areas implicated when one conducts business online. Business lawyers must be familiar with Technology Law.

There are a wide variety of services around the most common types of content and businesses need legal disclaimers, protection of intellectual property rights and other ways to limit liability.

Intellectual Property Issues

Unfair Internet Business Practices Such as Domain Name Hijacking & Cybersquatting

Anti-cybersquatting Consumer Protection Act

Linking/Scraping/Crawling

Patent Law

Licensing

Trade Secrets

Privacy & Security Issues

Credit Cards / Transaction Processing

E-Payment and Credit Card Security/Privacy

Children’s Online Privacy Protection Act

Data Breach Notification Laws

Data Privacy Laws

Human Resources & Employment Issues

BYOD & Computer Usage Guidelines for Employees

Employment and Labor Laws

Social Media Guidelines for Employees

We look forward to the opportunity to discuss any questions you may have regarding the range of business, technology and intellectual property services we offer. Our law office is based in Chicago, Illinois. Please feel free to call us at (866) 734-2568 should you have any questions.

Cyber-Law “governs the digital dissemination of both (digitalized) information and software and legal aspects of information technology more broadly, including information security and electronic commerce. Cyber law is a term that encapsulates the legal issues related to use of the Internet. It is less a distinct field of law than intellectual property or contract law, as it is a domain covering many areas of law and regulation, such as internet access and usage, privacy, freedom of expression, and jurisdiction.”

Intellectual Property rights (copyright, patent, trademark, trade secrets) and information technology systems each play a crucial role in business competitiveness. In order to realize the full potential of a company’s intangible business assets, it is necessary to be able to identify, locate and safeguard their disclosure and use. Cyber Security plays a crucial role in managing these internal and external business and legal risks. This “Hot Topics” discussion is a snapshot of developments in law, policy, regulation and court cases focusing on privacy and civil liberties, identity, cyber-conflict, IoT, standards, corporate structuring and the international technology marketplace.

This session covered:

Understanding how developments in smart home devices are creating new cyber security challenges

Learning how changes in regulatory agency policies and personnel are creating new privacy risks and opportunities

Identifying new legal cases affecting business operations

Recognizing new business and legal risks in relationships with customers and vendors and how to implement changes to mitigate such risks

Every business transaction is governed by contract law, even if the parties don’t realize it. Despite the overwhelming role it plays in our lives, contract law can be incredibly difficult to understand.

Successful Interior Designers know how to manage the legal needs of the business while bringing a creative vision to life for a client or project. Confusion about rights, obligations, and remedies when things go wrong can strain and even ruin an otherwise promising professional relationship.

This program teaches new designers and entrepreneurs answers to some basic questions, such as:

What to do when clients / vendors / contractors don’t pay?

How can one use Indemnifications, Disclaimers and Limitations of Liability clauses to balance business risk when the parties may not be economically balanced?

What types of remedies are available and what are the limitations in scope for certain types of monetary and “equitable” remedies?

Take a deeper dive into advanced issues for interior design professionals. Learn how contracts can protect your design business and how to safeguard your rights.

Qualifies for .1 CEU credit.

This program was originally delivered on Aug. 17, 2017 at the Design Center at theMART 14th Floor Conference Center, 222 Merchandise Mart Plaza, Chicago, IL 60654

Over the last 20 years I have worked with many technology companies and entrepreneurs in the Chicagoland area. For a time, I also ran the start up and entrepreneurial ventures subcommittee of the Chicago Bar Association.

The entrepreneur panels are always the best attended and also seem to have the liveliest discussions.

Drawing on those experience is it, here are five of the most common questions asked by entrepreneurs.

What is the best legal structure for my business?

How do I protect my idea?

What kind of contracts do I need?

Should I use employees or independent contractors?

Who else should be on my professional team?

Ordinarily one would tackle these in order. However, because the answer to #2 will inform the discussion around #1, it makes sense to address this first.

A recent article by Alexis Kramer, Legal Editor for Bloomberg BNA’s Electronic Commerce & Law Report, examines the nature of social media platform messenger applications and the move into e-commerce. This shift raises the implications for policing counterfeit goods and enforcement of online purchases.

The article entitled “E-Commerce May Come to Messaging Apps; Watch for Counterfeits and Contract Issues” highlights that “[b]uying and selling goods through messenger apps” … “is definitely the future of mobile.”

David M. Adler was interviewed for the article for insight around ecommerce legal issues, which include intellectual property and contractual issues, that arise when consumers transact business through messenger apps. Many of these issues were identified in his articlePinterest “Buyable Pins” And Ecommerce Liability.

The legal risks and issues vary widely depending on industry and product/service mix and encompass many interrelated areas of the law. Specifically, Adler inditified five main areas of concern for ecommerce, especially on mobile devices and/or through messenger apps:

Trade & Commerce Issues (Brand protections)

Online Agreements (limitations of liability)

Intellectual Property Issues (content ownership and use)

Privacy & Security (data gathering, usage, storage & sharing)

Human Resources & Employment Issues (reputation and social media use)

Facebook, WeChat, Instagram, Snapchat, Twitter and other social networks already allow users to send payments to one another through private messages. New tools such as the Pinterest “Buy Now” pin, and Twitter’s direct messages, facilitate commercial transactions with consumers.

As the article notes “enabling retail transactions via chat” opens the door for more counterfeit goods, difficulty monitoring the sales channel, increasing difficultly of enforcing online purchase terms, and lack of visual space to properly notify customers of the terms and conditions.

‘‘All the issues you would have when conducting transactions over the Internet are magnified when you’re using a messenger app,’’ David Adler, principal of Adler Law Group in Chicago, said.